#### Penn Square Building Association’s Appeal.

1. A sale by order of the Orphans’ Court for payment of debts does not, by the act of March 23d, 1867, section 3, discharge the lien of a first mortgage, although the mortgage debt be one of the debts for which the sale is asked.

2. Where a purchaser at a sale by order of the Orphans’ Court purchased for full value in ignorance of the law or fact that the land was sold subject to -a mortgage, the Court before confirmation has power to grant him relief.

3. A mortgage debt to which the land would be sold subject, should not he •scheduled amongst the debts for which the sale is asked, but should be noted in the petition. *Per Dwight, J., of Orphans’ Court.*

March 2d, 1876.

Before Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ.

Appeal from the Orphans’ Court of Philadelphia, No. 46, to January Term, 1876.

In the sale of the real estate of Henry Bloomer, deceased.

On the 6th of February, 1876, Martha Bloomer, administrator, etc., of the decedent, petitioned the Court for an order *331to sell Ms real estate, being a house and lot in Locust Street, Philadelphia; that being, as the petition set forth, the only-real estate of which the decedent died seized ; the debts amounted to $3937.55; amongst those specified in the schedule of debts accompanying the petition, was $2100, mortgages of the Penn Square Building Association on the premises asked to be sold.

The Court directed the administrator, to sell the real estate;-it was. accordingly sold to Michael McArdle for $4000, and the sale was duly confirmed.

The administrator filed her account charging herself with $4000, the purchase-money of the real estate, and with some personal estate, showing in her hands a balance of $3072.94.

The building association claimed that their mortgage debt should be paid out of this balance. The auditing Judge. (O’Brien) declined to allow the claim, on the ground that the lien was not divested by the Orphans’ Court sale. To this ruling the association excepted, the exception was argued before the full Orphans’ Court, aild the following opinion delivered by Dwight, J.

“ The act of March 23d, 1867? section 3 (Pamph. L., 44), 1 Br. Purd., 479, pi. Ill, which is in force in this county, is, ‘when the lien of a mortgage upon real estate, is, or shall be, prior to all other liens upon the same property, except other.mortgages, etc., the lien of such mortgage shall not be destroyed or in any way afiected by any judicial or other sale whatsoever, whether such judicial sale shall be made' by virtue or authority of any order or decree of any orphans’ or other court, etc.’ . . .

“We hold the ruling made at the audit to be correct. The aet'forbids the court to discharge such a debt. It should not be scheduled among the debts, though it would be a convenient practice for the petitioning representatives of the decedent to note them at the end of the schedule as debts secured by mortgage upon the decedent’s realty. The exceptions are dismissed.”

The building association appealed and assigned for error:

1. The Court erred in deciding that the mortgage owned by the appellant was a lien on the premises sola, although the sale was ordered by the Court to pay, *inter*alia, the debt secured by the mortgage.

2. The Court erred in decreeing distribution of the fund among the creditors of the decedent to the exclusion of the appellant.

*E.*Olmstead, for appellant,

cited Cumming’s Appeal, 11 Harris, 509 ; Berger *v.*Hiester, 6 Wharton, 210; Chambers *332
      *v.*Carson, 2 Id., 9 ; Everman’s Appeal, 17 P. F. Smith, 336; Lennig’s Estate, 2 Id., 138.

--Sharp, for appellees.

Judgment was entered in the Supreme Court, March 13th, 1876.

Per Cdriam :

Had the purchaser at the Orphans’ Court sale in this case applied to the court before the confirmation of the sale to have it set aside on the ground that he had bid the full value clear of incumbrance, in ignorance of the law or the fact that there was a first mortgage, which under the act of March 23, 1867, entitled “ An act relating to judicial sales and the preservation of the lien of mortgages ” (Pamph. L., 43), would remain a lien, the court would probably have listened to his application, as they would have had the power to grant him relief. But after such confirmation, that the mortgagee, whose title is unaffected, has no right to come upon the fund produced by the sale is too clear for argument.

Decree affirmed and appeal dismissed at the costs of the appellants.